The national problem of “gypsy cops” is not a new one. Toxic officers engage in misconduct in one agency after another over the course of a career and, in the meantime, cost thousands of dollars in lawsuits and inflict damage to agency reputation and officer morale along the way. These officers leave one agency where they are widely known to be a serious problem, only to find a new home with another agency where the behavior continues until it is time to move again.
Departments across Iowa and across the nation are struggling to recruit qualified applicants to serve as law enforcement officers. This presents an opportunity for unqualified men and women to gain employment because agencies need “warm bodies”. This is particularly true when the applicant happens to already be a certified officer.
One of the most significant factors aiding gypsy cops in finding employment is the unwillingness of past agency representatives to divulge facts that would disqualify the officer in the eyes of any reasonable background investigator or law enforcement leader. Serious problems—in the form of frequent citizen complaints, disciplinary write-ups and suspensions—are often documented but not shared with new agencies considering hiring these officers.
So, why are agencies failing to cooperate with other departments engaged in background investigations on these officers? One of the most common refrains is that sworn personnel refuse to cooperate based on the advice of Human Resources or attorneys. There is an overwhelming, though often vague, fear that any cooperation whatsoever will result in costly lawsuits filed by the toxic officer in question.
However, in the state of Iowa, there is a statute in place that protects agencies from being held liable for communicating past performance issues to a potential employer so long as those statements are truthful and made in good faith in response to another agency’s inquiry.
The simple purpose of this legal article is to bring to the attention of agency leaders—and those who advise them—that this employer immunity protection is currently in place in the state of Iowa. This article will briefly explain what the Iowa statute means for law enforcement leaders throughout the state who would like to speak up in an effort to prevent gypsy cops from finding new law enforcement positions but are hampered by misplaced concerns regarding legal liability.
A Right to “Speak Up” Under Iowa Law
Employer immunity statutes at the state level vary dramatically. In Iowa, the immunity is fairly straightforward in that truthful statements given in good faith upon request are legally protected.
Under Iowa Code § 91B.2:
- An employer or an employer’s representative who, upon request by or authorization of a current or former employee or upon request made by a person who in good faith is believed to be a representative of a prospective employer of a current or former employee, provides work-related information about a current or former employee, is immune from civil liability unless the employer or the employer’s representative acted unreasonably in providing the work-related information.
- For purposes of this section, an employer acts unreasonably if any of the following are present:
- The work-related information violates a civil right of the current or former employee.
- The work-related information knowingly is provided to a person who has no legitimate and common interest in receiving the work-related information.
- The work-related information is not relevant to the inquiry being made, is provided with malice, or is provided with no good faith belief that it is true.
- For purposes of this section, “employer” and “employee” are defined as provided in section 91A.2.
The key take-aways from Iowa Code § 91B.2 are that employers are protected when (1) they are responding to a specific request for information from a potential employer, (2) are honestly communicating in good faith and (3) do not veer into areas that are irrelevant to the inquiry, such as rumors and innuendo or gossip concerning an individual’s personal life.
Many agencies across the country allow background investigators to examine the documents related to work performance and separation that are in an officer’s personnel file—this limits the information communicated to the facts on the page rather than unsubstantiated opinion-based statements. But even more fundamental, whether the reference is given in writing or in conversation, an agency is best protected from claims of defamation by limiting themselves to performance deficiencies that are documented.
Knowing Iowa Law and Addressing the Problem of Gypsy Cops
Iowa Code § 91B.2 is a statute that agency leaders, city and county attorneys, HR professionals and background investigators should become familiar with as they look to hire officers from outside agencies. Background investigators should consider informing representatives from other agencies about this law when inquiries regarding past employment only result in “he worked here from 2015 until 2019, and that’s all I can tell you”. Furthermore, agency leaders should keep this statute in mind when making crucial decisions as to whether or not to divulge to another agency facts illustrating that the officer they are considering hiring is not fit to serve.
Law enforcement is a high liability profession. Managing liability should be the goal rather than eliminating all liability, in light of the fact that liability can never be eliminated—especially if law enforcement professionals are actively engaged in activities which simultaneously serve to improve the safety of the community while increasing the risks that lawsuits (founded or unfounded) may result.
As agency leaders in Iowa consider their options and their ethical obligations when contacted by other departments that are considering hiring toxic officers, they should take time to consider what Iowa state law actually says when it comes to honest, fact-based disclosures of past misconduct and poor performance.
Refusing to cooperate in these background investigations may mean less work and, in some instances, less risk of a baseless lawsuit filed by a toxic officer that once worked for the department. But it may also mean that a bad apple who has no business serving as a law enforcement officer finds a new home, a new badge and a new opportunity to disgrace the profession.
About the Author
Matt Dolan is a licensed attorney who specializes in training and advising public safety agencies in matters of legal liability. His training focuses on helping agency leaders create sound policies and procedures as a proactive means of minimizing their exposure to costly liability. A member of a law enforcement family dating back three generations, he serves as both Director and Public Safety Instructor with Dolan Consulting Group.
His training courses include Recruiting and Hiring for Law Enforcement, Confronting the Toxic Officer, Performance Evaluations for Public Safety, Making Discipline Stick®, and Supervisor Liability for Public Safety.
